[Federal Register: April 4, 2006 (Volume 71, Number 64)]
[Rules and Regulations]
[Page 16696-16699]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04ap06-2]
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DEPARTMENT OF STATE
22 CFR Part 62
[Public Notice: 5360]
RIN 1400-AC13
Rule Title: Secondary School Student Exchange Programs
AGENCY: State Department.
ACTION: Final rule.
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SUMMARY: The Department adopts as final certain proposed amendments to
existing regulations set forth at 22 CFR 62.25. These amendments
require program sponsors to complete criminal background checks for
officers, employees, agents, representatives and volunteers acting on
their behalf and require monthly contact with host families and
students. Also adopted as final is a requirement that all adult members
of a host family household undergo a criminal background check. A
requirement to report any allegation of sexual misconduct to both the
Department and local law enforcement authorities is also adopted.
DATES: Effective Date: This rule is effective May 4, 2006.
FOR FURTHER INFORMATION CONTACT: Stanley S. Colvin, Director, Office of
Exchange Coordination and Designation, U.S. Department of State, SA-44,
301 4th Street, SW., Room 734, Washington, DC 20547; or e-mail at
jexchanges@state.gov.
SUPPLEMENTARY INFORMATION: The Department of State designates academic
and private sector entities to conduct educational and cultural
exchange programs pursuant to a broad grant of authority provided by
the Mutual Educational and Cultural Exchange Act of 1961, as amended.
Under this authority, some 1,450 program sponsors facilitate the entry
of more than 275,000 exchange participants each year. Secondary school
students have been a vital component of these private sector exchange
activities since 1956 and serve to inform the opinion of foreign youth
of the United States and its people.
The safety and security of these participants are of paramount
importance to the Department. Although participants are generally 17 to
18 years of age, some participants are as young as 15 and often away
from home for the first time. Given the vulnerable status of such a
population, the Department proposed certain amendments to existing
regulation through publication of a proposed rule on August 12, 2005
(70 FR 47152-55), with minor correction on August 24, 2005 (70 FR
49595-16). Of the 81 comments received regarding criminal background
checks, almost all expressed strong support of the proposal regarding
criminal background or sex offender checks. Accordingly, all officers,
employees, representatives, agents, and volunteers acting on the
sponsors' behalf must not only be adequately trained and supervised
but, if they have direct personal contact with exchange students, must
also pass a criminal background check. This change is consistent with
requirements that have been adopted nationwide for volunteers and
employees of organizations serving youth populations. The Department
concludes that a sufficient network of local and state mechanisms is
now in place to provide for the convenient and cost effective vetting
of these individuals.
As a related issue, the Department adopts a requirement that all
adult members of a prospective host family also undergo a criminal
background check. The Department proposed that host family members be
vetted through a sex offender registry maintained by the state in which
the host family resides. These registries have been established over
the last few years and are now available in 48 of the 50 states.
Although the registries are easily accessed and require only the name
and zip code of the individual being vetted, commenters pointed out
that this information would also be contained in a criminal background
report. Such a report would be more comprehensive and would also
provide information regarding violent acts or crimes of moral
turpitude. The Department is persuaded by the logic of this position
and adopts a criminal background report rather than sex offender
registry requirement. To further protect student participants, the
Department adopts a requirement that sponsors provide written
information to each participant regarding the reporting of sexual abuse
or exploitation. The Department concludes that such information is well
advised given the youth of the participants and cross cultural
differences that may contribute to a reluctance to speak out regarding
such matters.
To provide greater clarity regarding program eligibility, the
Department proposed amendment of existing regulations set forth at
62.25(e) to require that student participants be bona fide students not
more than 18 years and six months of age as of the program start date.
Numerous comments questioned the utility of this change and pointed out
that some countries have
[[Page 16697]]
educational systems that make it impractical for students to
participate in an exchange until they have completed their studies in
the home country. To accommodate this small population of potential
participants the Department will deem as eligible those students who
are not more than 18 and a half years of age as of their program start
date regardless of their having completed secondary studies in their
home country. This fact must be disclosed to the appropriate school
officials of the prospective school placement who may accept or decline
their enrollment.
As the oversight and monitoring of students is central to
successful administration of these programs, the Department proposed to
limit the responsibility of area representatives. Currently this
limitation is based on a geographical radius of not more than 150
miles. The Department proposed to amend this requirement by
substituting a two-hour driving time limitation. Of the eighteen
comments received on this proposal, all were negative and suggested
that a geographical limitation be maintained. The Department agrees
with these comments and adopts a 120-mile geographical radius based
upon the realities of both rural and urban student placements.
Analysis of Comments
The Department received a total of 208 comments on the proposed
secondary school student regulations set forth at 22 CFR 62.25. The
following is a breakdown of the related sections:
Section 62.25(d)(1) received 81 comments of which 67 were
favorable;
Section 62.25(d)(2) received 18 comments of which all were opposed
to the change and recommended that the Department stay with a mileage
distance instead of a time frame.
Section 62.25(d)(4) received 4 comments of which all were
favorable.
Section 62.25(e)(1) & (2) received 143 comments each of which all
were opposed to the change.
Section 62.25(f)(1) received 23 comments of which all but one were
opposed to the change.
Section 62.25(g)(1) received 13 comments of which 11 were
favorable.
Section 62.25(j)(1) received 8 comments of which all were
favorable.
Section 62.25(j)(7) received 52 comments of which 34 were
favorable.
Section 62.25(m)(1) received 23 comments of which 8 were favorable
and several other accepted with modification.
In addition, 21 additional comments were received regarding
miscellaneous suggestions and comments.
Regulatory Analysis and Notices
Administrative Procedure Act
The Department is publishing this rule as a final rule, after it
was published as a proposed rule on August 12, 2005.
Regulatory Flexibility Act/Executive Order 13272: Small Business
These proposed changes to the regulations are hereby certified as
not expected to have a significant economic impact on a substantial
number of small entities under the criteria of the Regulatory
Flexibility Act, 5 U.S.C. 601-612, and Executive Order 13272, section
3(b).
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local and
tribal governments, in the aggregate, or by the private sector, of $100
million in any year and it will not significantly or uniquely affect
small governments. Therefore, no actions were deemed necessary under
the provisions of the Unfunded Mandates Reform Act of 1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by 5 U.S.C. 804 for the
purposes of Congressional review of agency rulemaking under the Small
Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801-
808). This rule will not result in an annual effect on the economy of
$100 million or more; a major increase in costs or prices; or
significant adverse effects on competition, employment, investment,
productivity, innovation, or on the ability of United States-based
companies to compete with foreign-based companies in domestic and
export markets.
Executive Order 12866
The Department of State does not consider this rule to be a
``significant regulatory action'' under Executive Order 12866, section
3(f), Regulatory Planning and Review. In addition, the Department is
exempt from Executive Order 12866 except to the extent that it is
promulgating regulations in conjunction with a domestic agency that are
significant regulatory actions. The Department has nevertheless
reviewed the regulation to ensure its consistency with the regulatory
philosophy and principles set forth in that Executive Order.
Executive Order 12988
The Department has reviewed this regulation in light of sections
3(a) and 3(b)(2) of Executive Order 12988 to eliminate ambiguity,
minimize litigation, establish clear legal standards, and reduce
burden.
Executive Orders 12372 and 13132
This regulation will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with section 6
of Executive Order 13132, it is determined that this rule does not have
sufficient federalism implications to require consultations or warrant
the preparation of a federalism summary impact statement. The
regulations implementing Executive Order 12372 regarding
intergovernmental consultation on Federal programs and activities do
not apply to this regulation.
Paperwork Reduction Act
This rule does not impose any new reporting or recordkeeping
requirements subject to the Paperwork Reduction Act, 44 U.S.C. Chapter
35.
List of Subjects in 22 CFR Part 62
Cultural exchange programs.
0
Accordingly, 22 CFR part 62 is to be amended as follows:
PART 62--EXCHANGE VISITOR PROGRAM
0
1. The authority citation for part 62 continues to read as follows:
Authority: 8 U.S.C. 1101(a)(15)(J), 1182, 1184, 1258; 22 U.S.C.
1431-1442, 2451-2460; Foreign Affairs Reform and Restructuring Act
of 1998, Pub. L. 105-277, 112 Stat. 2681 et seq.; Reorganization
Plan No. 2 of 1977, 3 CFR, 1977 Comp. p. 200; E.O. 12048 of March
27, 1978; 3 CFR, 1978 Comp. p. 168.
0
2. Section 62.25 is revised to read as follows:
Sec. 62.25 Secondary school students.
(a) Introduction. This section governs Department of State
designated exchange visitor programs under which foreign national
secondary school students are afforded the opportunity for up to one
year of study in a United States accredited public or private secondary
school, while living with an American host family or residing at an
accredited U.S. boarding school.
(b) Program sponsor eligibility. Eligibility for designation as a
secondary school student exchange visitor program sponsor is limited to
organizations:
[[Page 16698]]
(1) With tax-exempt status as conferred by the Internal Revenue
Service pursuant to section 501(c)(3) of the Internal Revenue Code; and
(2) Which are United States citizens as such terms are defined in
Sec. 62.2.
(c) Program eligibility. Secondary school student exchange visitor
programs designated by the Department of State must:
(1) Require all participants to be enrolled and participating in a
full course of study at an accredited educational institution;
(2) Allow entry of participants for not less than one academic
semester (or quarter equivalency) nor more than two academic semesters
(or quarter equivalency) duration; and
(3) Be conducted on a U.S. academic calendar year basis, except for
students from countries whose academic year is opposite that of the
United States. Exchange students may begin in the second semester of a
U.S. academic year if specifically permitted to do so, in writing, by
the school in which the exchange visitor is enrolled. Both the host
family and school must be notified prior to the exchange student's
arrival in the United States that the placement is for either an
academic semester or year, or calendar year program.
(d) Program administration. Sponsors must ensure that all officers,
employees, representatives, agents, and volunteers acting on their
behalf:
(1) Are adequately trained and supervised and that any such person
in direct personal contact with exchange students has been vetted
through a criminal background check ;
(2) Make no student placement beyond 120 miles of the home of a
local organizational representative authorized to act on the sponsor's
behalf in both routine and emergency matters arising from an exchange
student's participation in the exchange visitor program;
(3) Ensure that no organizational representative act as both host
family and area supervisor for any exchange student participant;
(4) Maintain, at minimum, a monthly schedule of personal contact
with the student and host family, and ensure that the school has
contact information for the local organizational representative and the
program sponsor's main office; and
(5) Adhere to all regulatory provisions set forth in this Part and
all additional terms and conditions governing program administration
that the Department may from time to time impose.
(e) Student selection. In addition to satisfying the requirements
of Sec. 62.10(a), sponsors must ensure that all participants in a
designated secondary school student exchange visitor program:
(1) Are secondary school students in their home country who have
not completed more than eleven years of primary and secondary study,
exclusive of kindergarten; or are at least 15 years of age but not more
than 18 years and six months of age as of the program start date;
(2) Demonstrate maturity, good character, and scholastic aptitude;
and
(3) Have not previously participated in an academic year or
semester secondary school student exchange program in the United States
or attended school in the United States in either F-1 or J-1 visa
status.
(f) Student enrollment. (1) Sponsors must secure prior written
acceptance for the enrollment of any exchange student participant in a
United States public or private secondary school
Such prior acceptance must:
(i) Be secured from the school principal or other authorized school
administrator of the school or school system that the exchange student
participant will attend; and
(ii) Include written arrangements concerning the payment of tuition
or waiver thereof if applicable.
(2) Under no circumstance may a sponsor facilitate the entry into
the United States of an exchange student for whom a written school
placement has not been secured.
(3) Sponsors must maintain copies of all written acceptances and
make such documents available for Department of State inspection upon
request.
(4) Sponsors must provide the school with a translated ``written
English language summary'' of the exchange student's complete academic
course work prior to commencement of school, in addition to any
additional documents the school may require. Sponsors must inform the
prospective host school of any student who has completed secondary
school in his/her home country.
(5) Sponsors may not facilitate the enrollment of more than five
exchange students in one school unless the school itself has requested,
in writing, the placement of more than five students.
(6) Upon issuance of Form DS-2019 to a prospective participant, the
sponsor accepts full responsibility for placing the student, except in
cases of voluntary student withdraw or visa denial.
(g) Student orientation. In addition to the orientation
requirements set forth at Sec. 62.10, all sponsors must provide
exchange students, prior to their departure from the home country, with
the following information:
(1) A summary of all operating procedures, rules, and regulations
governing student participation in the exchange visitor program along
with a detailed summary of travel arrangements;
(2) Age and language appropriate information on how to identify and
report sexual abuse or exploitation;
(3) A detailed profile of the host family in which the exchange
student is placed. The profile must state whether the host family is
either a permanent placement or a temporary arrival family;
(4) A detailed profile of the school and community in which the
exchange student is placed; and
(5) An identification card, which lists the exchange student's
name, United States host family placement address and telephone number,
and a telephone number which affords immediate contact with both the
program sponsor, the program sponsor's organizational representative,
and Department of State in case of emergency. Such cards may be
provided in advance of home country departure or immediately upon entry
into the United States.
(h) Student extra-curricular activities. Exchange students may
participate in school sanctioned and sponsored extra-curricular
activities, including athletics, if such participation is:
(1) Authorized by the local school district in which the student is
enrolled; and
(2) Authorized by the State authority responsible for determination
of athletic eligibility, if applicable.
(i) Student employment. Exchange students may not be employed on
either a full or part-time basis but may accept sporadic or
intermittent employment such as babysitting or yard work.
(j) Host family selection. Sponsors must adequately screen and
select all potential host families and at a minimum must:
(1) Provide potential host families with a detailed summary of the
exchange visitor program and the parameters of their participation,
duties, and obligations;
(2) Utilize a standard application form that must be signed and
dated by all potential host family applicants which provides a detailed
summary and profile of the host family, the physical home environment,
family composition, and community environment. Exchange students are
not permitted to reside with relatives.
(3) Conduct an in-person interview with all family members residing
in the home;
(4) Ensure that the host family is capable of providing a
comfortable and nurturing home environment;
[[Page 16699]]
(5) Ensure that the host family has a good reputation and character
by securing two personal references for each host family from the
school or community, attesting to the host family's good reputation and
character;
(6) Ensure that the host family has adequate financial resources to
undertake hosting obligations;
(7) Verify that each member of the host family household eighteen
years of age and older has undergone a criminal background check; and
(8) Maintain a record of all documentation, including but not
limited to application forms, background checks, evaluations, and
interviews, for all selected host families for a period of three years.
(k) Host family orientation. In addition to the orientation
requirements set forth in Sec. 62.10, sponsors must:
(1) Inform all host families of the philosophy, rules, and
regulations governing the sponsor's exchange visitor program;
(2) Provide all selected host families with a copy of Department of
State-promulgated Exchange Visitor Program regulations; and
(3) Advise all selected host families of strategies for cross-
cultural interaction and conduct workshops which will familiarize the
host family with cultural differences and practices.
(l) Host family placement. (1) Sponsors must secure, prior to the
student's departure from his or her home country, a permanent or
arrival host family placement for each exchange student participant.
Sponsors may not:
(i) Facilitate the entry into the United States for an exchange
student for whom a host family placement has not been secured;
(ii) Place more than one exchange student with a host family
without the express prior written consent of the Department of State.
Under no circumstance may more than two exchange students may be placed
with one host family.
(2) Sponsors must advise both the exchange student and host family,
in writing, of the respective family compositions and backgrounds of
each, whether the host family placement is a permanent or temporary
placement, and facilitate and encourage the exchange of correspondence
between the two prior to the student's departure from the home country.
(3) In the event of unforeseen circumstances which necessitate a
change of host family placement, the sponsor must document the
reason(s) necessitating such change and provide the Department of State
with an annual statistical summary reflecting the number and reason(s)
for such change in host family placement in the program's annual
report.
(m) Reporting requirements. Along with the annual report required
by regulations set forth at Sec. 62.15, sponsors must file with the
Department of State the following information:
(1) Sponsors must immediately report to the Department any incident
or allegation involving the actual or alleged sexual exploitation or
abuse of an exchange student participant. Sponsors must also report
such allegations as required by local or state statute or regulation.
Failure to report such incidents to the Department and, as required by
state law or regulation, to local law enforcement authorities shall be
grounds for the summary suspension and termination of the sponsor's
Exchange Visitor Program designation.
(2) A summation of all situations which resulted in the placement
of exchange student participants with more than one host family or
school placement; and
(3) Provide a report of all final academic year and semester
program participant placements by August 31 for the upcoming academic
year or January 15 for the Spring semester and calendar year. The
report must provide at a minimum, the exchange visitor student's full
name, Form DS-2019 number (SEVIS ID ), host family placement
(current U.S. address), and school (site of activity) address.
Dated: March 23, 2006.
Stanley S. Colvin,
Director, Bureau of Educational and Cultural Affairs, Department of
State.
[FR Doc. 06-3208 Filed 4-3-06; 8:45 am]
BILLING CODE 4710-05-P